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Judge Walker’s ruling

Just a year ago, I blogged an idea I had on one of the major arguments against legalizing same sex marriage. I admitted then that I am not a lawyer and wondered if my counter to that argument was worthless. But I posted it because it made sense to me. The argument is that allowing gays and lesbians to marry would be a major redefinition of marriage, and ” you can’t redefine marriage.” You could call it the “Adam and Eve, not Adam and Steve argument.” Thinking about it, I realized that marriage has been redefined through the centuries. The marriages we have today are not the same as the ones people had in the Bible. I posted this last September.

Last week, I was excited, as many LGBT people, to read Judge Walker’s ruling that found Proposition 8 in violation of the federal constitution’s 14th amendment. What many of us learned by reading the document:

1. the judge was very thorough and considered all relevant aspects of the case
2. the case for LGBT civil rights and constitutional protection was carefully reasoned and backed by existing law
3. attorneys Boies and Olson really understood what this issue means to our community and defended us well
4. LGBT constitutional rights cannot be taken away by popular vote
5. the defenders of Proposition 8 failed miserably to make their case and failed to sway a conservative judge

I was especially excited to read the sections where Judge Walker examined that question of the definition, and possible redefinition, of marriage. He wrote:
The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. (emphasis mine) FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, FF 26-27, social disapproval of same-sex relationships, FF 74, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction, FF 43. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. (emphasis mine)

Walker was advancing my argument as a part of his ruling. The whole 136 pages is not a difficult read. In fact, it is well written and easy to understand.

About

I am a Quaker living in West Berkeley, CA, a member of Strawberry Creek Monthly Meeting, College Park Quarterly Meeting, and Pacific Yearly Meeting. I came out as a gay man at age 40. I am currently divorced and have two adult children. Many people are curious how a white guy like me got a Japanese last name. For the whole story go to